Very Important point
Under Section 313 of Cr.P.C. if the accused (who is already exempted from personally appearing in the Court) makes an application to the court praying that he may be allowed to answer the questions without making his physical presence in court on account of justifying exigency the court can pass appropriate orders thereon, provided such application is accompanied by an affidavit sworn to by the accused himself containing the following matters; (a) A narration of facts to satisfy the court of his real difficulties to be physically present in court for giving such answers. (b) An assurance that no prejudice would be caused to him, in any manner, by dispensing with his personal presence during such questioning. (c) An undertaking that he would not raise any grievance on that score at any stage of the case.

Headnote:Code of Criminal Procedure, 1973-Section 313-Examination of accused by Court-Is it indispensably mandatory that accused himself should be questioned in respect of warrant cases?-Can Court allow advocate to answer question on behalf of accused?-Word "shall" in clause (b) to Section 313(1) is to be interpreted as obligatory on Court and it should be complied with when it is for benefit of accused-In justifying exigencies court can allow answer question without making physical presence of accused in Court-Accused must make application with sworn affidavit narrating facts to satisfy real difficulties, assure no prejudice would be caused to him and undertake not to raise grievance on that score at any stage-Court if satisfied can supply questionnaire to his advocate fixing time within which same to be returned duly answered-Failure to return within time would forfeit right to seek personal exemption during questioning.
       Per majority (K.T. Thomas & S.N. Variava, JJ.)
       It is well settled that the provision is mainly intended to benefit the accused and as its corollary to benefit the court in reaching the final conclusion. At the same time it should be borne in mind that the provision is not intended to nail him to any position, but to comply with the most salutary principle of natural justice enshrined in the maxim "audi alteram partem". The word "may" in clause (a) of sub-section (1) in Section 313 of the Code indicates, without any doubt, that even if the court does not put any question under that clause the accused cannot raise any grievance of it. But if the court fails to put the needed question under clause (b) of the sub-section it would result in a handicap to the accused and he can legitimately claim that no evidence, without affording him the opportunity to explain, can be used against him. It is now well settled that a circumstance about which the accused was not asked to explain cannot be used against him. (Paras 18 and 19)
       But the situation to be considered now is whether, with the revolutionary change in technology of communication and transmission and the marked improvement in facilities for legal aid in the country, is it necessary that in all cases the accused must answer by personally remaining present in Court. We clarify that this is the requirement and would be the general rule. However, if remaining present involves undue hardship and large expense, could the Court not alleviate the difficulties. If the court holds the view that the situation in which he made such a plea is genuine, should the court say that he has no escape but he must undergo all the tribulations and hardships and answer such questions personally presenting himself in court. If there are other accused in the same case, and the court has already completed their questioning, should they too wait for long without their case reaching finality, or without registering further progress of their trial until their co-accused is able to attend the court personally and answer the court questions? Why should a criminal court be rendered helpless in such a situation? (Para 20)
       The one category of offences which is specifically exempted from the rigour of Section 313(1)(b) of the Code is "Summons cases". It must be remembered that every case in which the offence triable is punishable with imprisonment for a term not exceeding two years is a "summons case". Thus, all other offences generally belong to a different category altogether among which are included offences punishable with varying sentences from imprisonment for three years up to imprisonment for life and even right up to death penalty. Hence there are several offences in that category which are far less serious in gravity compared with grave and very grave offences. Even in cases involving less serious offences, can not the court extend a helping hand to an accused who is placed in a predicament deserving such a help? (Para 21)
       Section 243(1) of the Code enables the accused, who is involved in the trial of warrant case instituted on police report, to put in any written statement. When any such statement is filed the Court is obliged to make it part of the record of the case. Even if such case is not instituted on police report the accused has the same right (vide Section 247). Even the accused involved in offences exclusively triable by the Court of sessions can also exercise such a right to put in written statements [Section 233(2) of the Code]. It is common knowledge that most of such written statements, if not all, are prepared by the counsel of the accused. If such written statements can be treated as statements directly emanating from the accused, hook, line and sinker, why not the answers given by him in the manner set out hereinafter, in special contingencies, be afforded the same worth. (Para 22)
       A pragmatic and humanistic approach is warranted in regard to such special exigencies. The word "shall" in clause (b) to Section 313(1) of the Code is to be interpreted as obligatory on the Court and it should be complied with when it is for the benefit of the accused. But if it works to his great prejudice and disadvantage the Court should, in appropriate cases, e.g., if the accused satisfies the court that he is unable to reach the venue of the court, except by bearing huge expenditure or that he is unable to travel the long journey due to physical incapacity or some such other hardship relieve him of such hardship and at the same time adopt a measure to comply with the requirements in Section 313 of the Code in a substantial manner. How this could be achieved? (Para 23)
       If the accused (who is already exempted from personally appearing in the Court) makes an application to the court praying that he may be allowed to answer the questions without making his physical presence in court on account of justifying exigency the court can pass appropriate orders thereon, provided such application is accompanied by an affidavit sworn to by the accused himself containing the following matters: (a) A narration of facts to satisfy the court of his real difficulties to be physically present in court for giving such answers. (b) An assurance that no prejudice would be caused to him, in any manner, by dispensing with his personal presence during such questioning. (c) An undertaking that he would not raise any grievance on that score at any stage of the case. If the court is satisfied of the genuineness of the statements made by the accused in the said application and affidavit it is open to the court to supply the questionnaire to his advocate (containing the questions which the court might put to him under Section 313 of the Code) and fix the time within which the same has to be returned duly answered by the accused together with a properly authenticated affidavit that those answers were given by the accused himself. He should affix his signature on all the sheets of the answered questionnaire. However, if he does not wish to give any answer to any of the questions he is free to indicate that fact at the appropriate place in the questionnaire [as a matter of precaution the Court may keep photocopy or carbon copy of the questionnaire before it is supplied to the accused for answers]. If the accused fails to return the questionnaire duly answered as aforesaid within the time or extended time granted by the court, he shall forfeit his right to seek personal exemption from court during such questioning. If the above course is adopted in exceptional exigency it would not violate the legislative intent envisaged in Section 313 of the Code. (Paras 24, 25 and 26)
       Per R.P. Sethi, J. (Dissenting)
       The object of the section would be defeated if, instead of the accused, his lawyer replies the question with his invented ingenuity. The imaginative suggestions of the counsel cannot be a substitute for the taking of the statement from the accused. The Section enables a Judge to ascertain from time to time, from the accused as to what explanation he may desire to offer regarding any fact stated by a witness against him. It has to be noticed that the non compliance of the provisions of Section is not a mere irregularity. Omission to put questions to the accused on specific points vitiates the trial. Omission to put specific points appearing against the accused apparently occasions prejudice to him which cannot be rectified under Section 465 of the Code of Criminal Procedure. It is true that all omissions on some points to be put to the accused under Section 313 would not vitiate the trial but the failure to put vital points and circumstances is sure to occasion a miscarriage of justice and thus vitiates the trial to that extent. (Para 32)
       The scheme of the Code shows that after the evidence of the prosecution is closed, the local inspection, if any, held and the court witnesses in terms of Section 311 are examined, the Court would, then and then alone, direct the examination of the accused under Section 313, upon being satisfied that he was required to personally explain the circumstance appearing in the evidence against him. Such a recourse to examine the accused at this stage cannot in any way termed to be causing him inconvenience or occasioning any harassment. Otherwise in the absence of such examination, and without leading defence evidence, the accused in all probability is likely to be convicted and sentenced for the commission of the offence with which he has been charged and tried by the magistrate or the Court. In that event permitting the examination of the accused personally, is actually for his benefit. There are cases where the accused during the course of his examination under this Section, may place on record any clinching evidence which may not even require him to produce any defence evidence. The accused when personally appearing can also be in a bargaining position by persuading the Court to take a lenient view despite proof of material circumstances against him. Such a statement by which the accused may admit, any of the allegations or circumstances appearing against him, cannot be made by his pleader. Any such statement made by his counsel cannot bind the accused. The conviction or sentence passed against the accused, without offering him an opportunity of explaining the circumstances would not only violate the maxim of audi alteram partem but also be contrary to the concept of the "due process of law" recognised and accepted by all civilised nations. (Para 38)
       Section 313 of the Criminal Procedure Code does not envisage the examination of the counsel, in place of the accused and the law laid down by this Court by three Judge Bench in 1969 and later on followed in 1973, does not require any reconsideration, particularly by a Bench of the same strength and of a coordinate jurisdiction. (Para 43)
       The mandate of Section 313 is imperative with no exception. However, the violation of its compliance can be objected to only by the accused for whose benefit the Section has been enacted. The complainant or the prosecution cannot be permitted to allow the illegality being committed and perpetuated and after the enquiry or trial results in acquittal of the accused, to complain on the basis of the alleged violation. There is no allegation nor could there be any that the personal non-examination of the accused persons had, in any way, adversely affected the prosecution. Section 465 of the Code could not be relied upon by the prosecution for the purposes of assailing the judgment of acquittal after the completion of the trial. Despite laying down the correct position of law the High Court appears to be not justified in setting aside the order of acquittal at the instance of the informant of the crime. In the absence of any complaint by the accused for their non examination under Section 313 of the Code, there was no justification to remand the case only for the purposes of examining the concerned accused personally and to pass fresh orders on merits in accordance with law. (Para 44)

JUDGMENT

Thomas, J.-Leave granted.

2. When a criminal court completes prosecution evidence (other than in summons cases) is it indispensably mandatory that the accused himself should be questioned? Can not the court allow the advocate to answer such questions on behalf of the accused at least in some exigent conditions? A two Judge Bench of this Court has held in Usha K. Pillai v. Raj K. Srinivas & Ors.1 that there is no alternative to it permissible under law. When such an issue arose in this case before this Court, a Bench of two Judges made a reference to a larger Bench for reconsideration of the legal position stated in Usha K. Pillai (supra).

3. The aforesaid question arose in this case from the following factual background: First appellant - a software engineer (now stationed in USA) is the husband of second respondent Ms. Arundathi. Their marriage was solemnised in November 1992 and a female child was born to them. But eventually their connubial life passed through bad weather and the situation reached a stage when Arundathi moved a Judicial Magistrate of First Class for maintenance allowance from her husband. An order in her favour was passed by the said magistrate under Section 125 of the Code of Criminal Procedure (for short "the Code").

4. On 10.3.1993, Arundathi lodged a complaint with the police alleging, inter alia, that her husband and his sister (Kumari Jaya - second appellant) and their parents had ill-treated Arunadathi for not bringing more dowry; and that she was pestered with persistent demand for more amount of dowry. The police conducted investigation on the said complaint and laid a charge-sheet against both the appellants and their parents. The trial Court discharged the mother of the appellants at the initial stage itself and framed a charge against the appellants and their father for offences under Sections 3 and 4 of the Dowry Prohibition Act and also under Section 498-A of the Indian Penal Code.

5. Prosecution examined five witnesses and closed the evidence. When the next stage for examination of the accused under Section 313 of the Code reached the trial court passed the following proceedings :

"Evidence closed and statement under Section 313 Cr. P.C. was kept ready to give opportunity to the accused as prescribed under Section 313 Cr.P.C. Statement of A-2 father recorded who denied every circumstance, but did not add any further statement. The counsel for the accused filed application for dispensing with the questioning of A-1 & A-4. As A-1 is in America and A-4 is a student studying in Gadag, the counsel has endorsed on their statement that A-1 and A-4 have nothing to say by way of their statements. Considering the reality, A-1 has to come from America the case will unnecessarily be delayed. Hence, on the said endorsement the counsel for the accused was given the opportunity to make statement for A-1 and A-4 and their physical presence is dispensed with. The case is posted for argument."

6. The trial magistrate thereafter proceeded to hear the arguments and finally passed a judgment acquitting all the accused of the offences charged. Arundathi then filed a revision before the High Court challenging the aforesaid order of the acquittal. A Single Judge of the High Court heard the revision and learned Judge found that as per the decision of this Court in Usha K. Pillai (supra), trial Court has no other alternative and has no discretion to dispense with the examination of the accused personally under Section 313 of the Code. Hence the learned Single Judge set aside the order of acquittal passed by the trial court and remitted the case to the trial court with a direction to dispose it of afresh after examining the three accused under Section 313 of the Code.

7. The father of the appellants passed away in the meanwhile. Hence this appeal was filed by the remaining accused who are the husband and sister-in-law of Arundathi. One of the contentions raised by the appellants is that if the court did not put questi

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2000 Supreme(SC) 1639

Cases Referred (12)